Describe about the Business Practical Implications of Change Immigration.
1. In order to discuss the practice implications of the Waensila case, it is imperative to state the key facts related to the case. The case deals with the visa application of a Thailand citizen (Weansila) who arrived in November, 2007 to Australia on a visitor visa. Considering the turmoil in Thailand, an application was files for a protection visa by Waensila but the same was rejected by the High Court in October 2009. Almost a year later, he filed an application for a partner visa. But this request was turned down as the Schedule 3 criteria were not satisfied by him. As per the relevant clause in the Schedule 3, an application for a partner visa needs to be made within 28 days of the individual getting a substantive visa. In Waensila’s case, this period got over in 2008 only[1]. In order to prove that his case provided compelling circumstance for the grant of a partner visa, the following points were highlighted.
Despite highlighting the above circumstances, his visa application was turned down since Schedule 3 (Criteria 3001) was not fulfilled. However, the Federal Court in its decision in the Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32 case ruled the relevant clauses of Schedule 3 i.e. 3001, 3002 and 3003 must be fulfilled at the time of application. Further, the verdict took into consideration the compelling circumstances of the appellant while deciding the case and opined that the provision of taking into consideration such circumstances is meant to provide requisite flexibility in law[2].
In the aftermath of the case, DIBP (Department for Immigration and Border Protection) modified the existing rules so as to reflect the crux of the case whereby compelling circumstances need to be considered at the application time. Further, these circumstances may arise not only at the time of application but the time leading to the case verdict. The immediate impact of the case has been that some of the cases have been ruled in favour of the applicants. A case in point is the decision on April 5th, 2016 involving James Tan Immigration Consultants in which their client was awarded visa in view of the compelling circumstances that ensured waiver of certain clauses[3].
However on the same day when the Waensila verdict was passed by the full court, another decision was passed by the Federal Circuit court which was in violation of the principles advocated in Waensila verdict which led to a confusing situation. In the Kaur vs Minister for Immigration and Border Protection, the tribunal ruled that the circumstances which arise after the application date must not be taken into consideration[4]. Apparently, both the case were in violation of each other but for reference, greater consideration would be accorded to full court decision as it is unlikely that the Federal Circuit court was aware of the rationale and judgement by the Full Court otherwise would have passed a verdict in accordance with that.
This decision by the full court sets precedent whereby the compelling circumstances at the time of application or even after the application can be taken into consideration so as to provide the requisite flexibility to the courts and law enforcement agencies while ensuring that the spirit of the underlying law is not violated. While earlier the compelling circumstances were at the discretion of the minister, now the same can be considered by the court suo motu and hence the scope of taking a wide array of circumstances has increased[5]. This would make it easier for the applicants to obtain a spouse case in genuine cases where a particular requirement may be waived considering the underlying circumstances. Hence, this landmark case makes it easier for the applicants to continue their Australian stay when the application is under process. Also, this enhances hope for a favourable decision as and where the situation demands which would be beneficial for the country as well[6].
It is noteworthy that this verdict does not have only positive implications but can also backfire due to the attached negative implications. This is because the visa regime should not be too lenient as it becomes open to abuse and potentially being abused by unsocial elements which in the long term may have adverse consequences for Australia. Due to the change in the visa law conferred through the judgement, any dangerous or anti-social element can potentially obtain a partner visa on the pretext of being in a relationship with an Australian citizen[7]. Before the given decision, the visa was granted only in cases where the compelling reasons could be proved in court. There has been a change in this which could jeopardise the national interests and also enhance immigration of foreigners which in the long term may lead to conflicts.
It is also noteworthy that the implications of the given decisions will have a wide influence not only on the future and the present cases but cases that have been already ruled especially in the recent past. It may be possible for the courts to reconsider these cases on the prevailing circumstances rather than limiting it to those prevailing at application time. This would brighten the chances of some of the cases that have been previously turned down. In the spirit of law and justice, the court may have to ignore the time limit of 35 days to review the cases and would need to dispense justice to these cases also.
2: In the initial verdict by the tribunal, Waensila’s application for a partner visa was rejected as the circumstances after the visa application were not considered. This was in line with a statutory principle called as substantive cannons of construction. As per this principle, the rues that have been framed must be adhered to for each case unless some discretion is explicitly allowed[8].
For bring about change in the existing law, the full court also relied on certain statutory principles. One of the relevant principles that had been deployed was the repeals by implication principle. The application of this principle takes place when there is an intention on part of the lawmakers to alter or update certain particular provisions of the law earlier in place[9]. Hence, in order to enhance the overall effectiveness, a new law is formed through suitable alterations which supersede the previous law. For instance, in the given case there was an alteration with regards to the timing restriction on visa filing which had a dramatic influence on the verdict of not only the Waensila case but numerous other similar cases
Yet another statutory principle that was deployed during the verdict of the full court was the remedial statues. This implies that court being alterations to law when there is difficulty in applying these or they are too general in their purview. While the existing law was not difficult with regards to implementation, but it was surely too general and hence alterations in law were demanded. The justices preceding over the case held the opinion that the circumstances after the application was required to be considered as it potentially had significant implications for the case, but the same could not be incorporated because of the prevalent law[10]. Further, the existence of the case for consideration of the circumstances in special cases meant that there was considerable confusion leading to proliferation and inconsistency in decision making, therefore leading to a confused precedent and therefore decided to inculcate the consideration of circumstances till the final decision is reached.
References
Arch, M, Schedule 3 Case Everyone Needs to Know!!!, [website], 2016a, https://migrationalliance.com.au/immigration-daily-news/entry/invalid-post-5.html (accessed 27 July, 2016)
Arch, M, Schedule 3: Case From Federal Circuit Inconsistent With Waensila, Handed Down Same Day!, [website], 2016b, https://migrationalliance.com.au/immigration-daily-news/entry/2016-03-schedule-3-case-from-federal-circuit-inconsistent-with-waensila-handed-down-same-day.html (accessed 27 July, 2016)
Dharmananda, J and P. Lane, ‘Teaching Statutory Interpretation in Australia: What’s Next?’, Statute Law Review, vol. 37, no.2, 2016, pp. 37-41
EthosMigration, New Federal Court Decision on Schedule 3 and its Effect on Visa Applications, [website], nd, https://ethosmigration.com.au/new-federal-court-decision-on-schedule-3-and-its-effect-on-visa-applications/ (accessed 27 July, 2016)
MIA, Great news for Partner applicants who applied as unlawful (did not hold a substantive visa), [website], 2016, https://www.iscah.com/great-news-for-partner-applicants-who-applied-as-unlawful-did-not-hold-a-substantive-visa/ (accessed 27 July, 2016)
Michalopoulos, P, New Federal Court Decision on Schedule 3 and its Effect on Visa Applications, [website], 2016, https://www.linkedin.com/pulse/new-federal-court-decision-schedule-3-its-effect-visa-michalopoulos (accessed 27 July, 2016)
Tan, J, WAENSILA’S CASE COMPELS CHANGES TO DEPARTMENT OF IMMIGRATION’S GUIDELINES ON SCHEDULE 3 CRITERIA, [website], 2016, https://immigrationlawyer.com.au/waensilas-case-compels-changes-to-department-of-immigrations-guidelines-on-schedule-3-criteria.html (accessed 27 July, 2016)
Vermeule, A, ‘Conventions of Agency Independence’, Columbia Law Review, vol. 113, no.5, 2011, pp. 12-15
[1] Arch, M, Schedule 3 Case Everyone Needs to Know!!!, [website], 2016a, https://migrationalliance.com.au/immigration-daily-news/entry/invalid-post-5.html (accessed 27 July, 2016)
[2] Ibid. 1
[3] Tan, J, WAENSILA’S CASE COMPELS CHANGES TO DEPARTMENT OF IMMIGRATION’S GUIDELINES ON SCHEDULE 3 CRITERIA, [website], 2016, https://immigrationlawyer.com.au/waensilas-case-compels-changes-to-department-of-immigrations-guidelines-on-schedule-3-criteria.html (accessed 27 July, 2016)
[4] Arch, M, Schedule 3: Case From Federal Circuit Inconsistent With Waensila, Handed Down Same Day!, [website], 2016b, https://migrationalliance.com.au/immigration-daily-news/entry/2016-03-schedule-3-case-from-federal-circuit-inconsistent-with-waensila-handed-down-same-day.html (accessed 27 July, 2016)
[5] EthosMigration, New Federal Court Decision on Schedule 3 and its Effect on Visa Applications, [website], nd, https://ethosmigration.com.au/new-federal-court-decision-on-schedule-3-and-its-effect-on-visa-applications/ (accessed 27 July, 2016)
[6] MIA, Great news for Partner applicants who applied as unlawful (did not hold a substantive visa), [website], 2016, https://www.iscah.com/great-news-for-partner-applicants-who-applied-as-unlawful-did-not-hold-a-substantive-visa/ (accessed 27 July, 2016)
[7] Michalopoulos, P, New Federal Court Decision on Schedule 3 and its Effect on Visa Applications, [website], 2016, https://www.linkedin.com/pulse/new-federal-court-decision-schedule-3-its-effect-visa-michalopoulos (accessed 27 July, 2016)
[8] Vermeule, A, ‘Conventions of Agency Independence’, Columbia Law Review, vol. 113, no.5, 2011, pp. 12-15
[9] Dharmananda, J and P. Lane, ‘Teaching Statutory Interpretation in Australia: What’s Next?’, Statute Law Review, vol. 37, no.2, 2016, pp. 37-41
[10] Ibid. 8
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